Article 11.10. Limited Tendering
1. If a procuring entity uses limited tendering, it may choose, according to the nature of the procurement, not to apply Article 11.7 (Notices), Article 11.8 (Conditions for Participation), Article 11.9 (Qualification of Suppliers), Article 11.11 (Negotiations), Article 11.12 (Technical Specifications), Article 11.13 (Tender Documentation), Article 11.14 (Time Periods), or Article 11.15 (Treatment of Tenders and Awarding of Contracts). A procuring entity may use limited tendering only under the following circumstances:
(a) if, in response to a prior notice, invitation to participate, or invitation to tender:
(i) no tenders were submitted or no suppliers requested participation;
(ii) no tenders were submitted that conform to the essential requirements in the tender documentation;
(iii) no suppliers satisfied the conditions for participation; or
(iv) the tenders submitted were collusive,
provided that the procuring entity does not substantially modify the essential requirements set out in the notices or tender documentation;
(b) if the good or service can be supplied only by a particular supplier and no reasonable alternative or substitute good or service exists for any of the following reasons:
(i) the requirement is for a work of art;
(ii) the protection of patents, copyrights, or other exclusive rights; or
(iii) due to an absence of competition for technical reasons;
(c) for additional deliveries by the original supplier or its authorised agent, of good or service that were not included in the initial procurement if a change of supplier for such additional good or service:
(i) cannot be made for technical reasons such as requirements of interchangeability or interoperability with existing equipment, software, services, or installations procured under the initial procurement, or due to conditions under original supplier warranties; and
(ii) would cause significant inconvenience or substantial duplication of costs for the procuring entity;
(d) for a good purchased on a commodity market or exchange;
(e) if a procuring entity procures a prototype or a first good or service that is intended for limited trial or that is developed at its request in the course of, and for, a particular contract for research, experiment, study, or original development. Original development of a prototype or a first good or service may include limited production or supply in order to incorporate the results of field testing and to demonstrate that the prototype or the first good or service is suitable for production or supply in quantity to acceptable quality standards, but does not include quantity production or supply to establish commercial viability or to recover research and development costs. Subsequent procurements of these newly developed good or service, however, shall be subject to this Chapter;
(f) if additional service that were not included in the initial contract but that were within the objectives of the original tender documentation have, due to unforeseeable circumstances, become necessary to complete the construction services described therein. However, the total value of contracts awarded for additional service may not exceed 50 per cent of the value of the initial contract;
(g) for new services consisting of the repetition of similar services which conform to a basic project for which an initial contract was awarded and for which the entity has indicated in the notice of intended procurement concerning the initial service that limited tendering procedures might be used in awarding contracts for such new services;
(h) for purchases made under exceptionally advantageous conditions that only arise in the very short term, such as from unusual disposals, liquidation, bankruptcy, or receivership, but not for routine purchases from regular suppliers;
(i) if a contract is awarded to the winner of a design contest, provided that:
(i) the contest has been organized in a manner that is consistent with this Chapter; and
(ii) the contest is judged by an independent jury with a view to award a design contract to the winner;
(j) in so far as is strictly necessary if, for reasons of extreme urgency brought about by events unforeseeable by the procuring entity, the good or service could not be obtained in time by means of open or selective tendering; or
(k) any other circumstances as provided in the respective Party’s laws and regulations.
2. For each contract awarded in accordance with paragraph 2, a procuring entity shall prepare a report in writing, or maintain a record, that includes the name of the procuring entity, the value and kind of good or service procured, and a statement that indicates the circumstances and conditions described in paragraph 2 that justified the use of limited tendering.
Article 11.11. Negotiations
1. A Party may provide for its procuring entities to conduct negotiations in the context of covered procurement if:
(a) the procuring entity has indicated its intent to conduct negotiations in the notice of intended procurement required under Article 11.7 (Notices);
(b) it appears from the evaluation that no tender is obviously the most advantageous in terms of the specific evaluation criteria set out in the notice of intended procurement or tender documentation;
(c) there is a need to clarify the terms and conditions; or
(d) all bids exceed the allocated prices provided for in the procuring entity’s budget.
2. A procuring entity shall:
(a) ensure that any elimination of suppliers participating in negotiations is carried out in accordance with the evaluation criteria set out in the notice of intended procurement or tender documentation; and
(b) when negotiations are concluded, provide a common deadline for the remaining participating suppliers to submit any new or revised tenders.
Article 11.12. Technical Specifications
1. A procuring entity shall not prepare, adopt, or apply any technical specification or prescribe any conformity assessment procedure with the sole purpose or effect of creating an unnecessary obstacle to participation of suppliers of the other Party.
2. In prescribing the technical specifications for the good or service being procured, a procuring entity shall, if appropriate:
(a) set out the technical specification in terms of performance and functional requirements, rather than design or descriptive characteristics; and
(b) base the technical specification on international standards, if these exist and are applicable. In the absence of international standards, it shall base the technical specification on national technical regulations, recognized national standards, or building codes.
3. If design or descriptive characteristics are used in the technical specification, a procuring entity should indicate, if appropriate, that it will consider tenders of equivalent good or service that demonstrably fulfil the requirements of the procurement by including words such as “or equivalent” in the tender documentation.
4. A procuring entity shall not prescribe technical specification that require or refer to a particular trademark or trade name, patent, copyright, design, type, specific origin, producer, or supplier, unless there is no other sufficiently precise or intelligible way of describing the procurement requirements and provided that, in these cases, the procuring entity includes words such as “or equivalent” in the tender documentation.
5. For greater certainty, a procuring entity may conduct market research in developing specification for a particular procurement.
6. For greater certainty, this Article is not intended to preclude a procuring entity from preparing, adopting, or applying technical specification to promote the conservation of natural resources or the protection of the environment. Such specification, where applicable, shall be based on relevant and mutually international standards.
7. For greater certainty, this Chapter is not intended to preclude a Party, or its procuring entity, from preparing, adopting, or applying technical specification required to protect sensitive government information, including specification that may affect or limit the storage, hosting, or processing of such information outside the territory of the Party.
Article 11.13. Tender Documentation
1. A procuring entity shall promptly make available or provide on request to any interested supplier tender documentation that includes all information necessary to permit the supplier to prepare and submit a responsive tender. Unless already provided in the notice of intended procurement, that tender documentation shall include a complete description of:
(a) the procurement, including the nature, scope, and, if known, the quantity of the good or service to be procured or, if the quantity is not known, the estimated quantity, and any requirements to be fulfilled, including any technical specifications, conformity assessment certification, plans, drawings, or instructional materials;
(b) any conditions for participation of suppliers, including any financial guarantees, information, and documents that suppliers are required to submit in connection with the conditions for participation;
(c) all evaluation criteria to be considered in the awarding of the contract and, unless price is the sole criterion, the relative importance of those criteria;
(d) if the procuring entity will conduct the procurement by electronic means, any authentication and encryption requirements or other requirements related to the submission of information by electronic means;
(e) if there will be a public opening of tenders, the date, time, and place for the opening, and, if appropriate, the persons authorised to be present;
(f) any other terms or conditions relevant to the evaluation of tenders; and
(g) any date for delivery of good or the supply of service.
2. Subject to any fees if applicable, an entity should make relevant tender documentation publicly available through electronic means or a computer-based telecommunications network openly accessible to all interested suppliers.
3. In establishing any date for the delivery of good or the supply of service being procured, a procuring entity shall take into account factors such as the complexity of the procurement, the extent of subcontracting anticipated, and the realistic time required for production, de-stocking, and transport of good from the point of supply or for supply of service.
4. A procuring entity shall promptly reply to any reasonable requests for relevant information by an interested or participating supplier, provided that such information does not give that supplier an advantage over other suppliers.
5. If, prior to the award of a contract, a procuring entity modifies the evaluation criteria or requirement set out in a notice of intended procurement or tender documentation provided to a participating supplier, or amends, or re-issues a notice or tender documentation, it shall publish or provide those modifications, or the amended or re- issued notice or tender documentation:
(a) to all suppliers that are participating in the procurement at the time of the modification, amendment, or re-issuance, if those suppliers are known to the procuring entity, and, in all other cases, in the same manner as the original information was made available; and
(b) in adequate time to allow those suppliers to modify and re- submit their initial tender, if appropriate.
Article 11.14. Time Periods
General
1. A procuring entity shall, consistent with its own reasonable needs, provide sufficient time for a supplier to obtain the tender documentation and to prepare and submit a request for participation and a responsive tender, taking into account factors such as:
(a) the nature and complexity of the procurement;
(b) the extent of subcontracting anticipated; and
(c) the time necessary for transmitting tenders by non-electronic means from foreign as well as domestic points if electronic means are not used.
Deadlines
2. The time period for covered procurement shall be in accordance with each Party’s laws and regulations.
Article 11.15. Treatment of Tenders and Awarding of Contracts Treatment of Tenders
1. A procuring entity shall receive, open, and treat all tenders under procedures that guarantee the fairness and impartiality of the procurement process and the confidentiality of tenders.
2. If the tender of a supplier is received after the time specified for receiving tenders, the procuring entity shall not penalize that supplier if the delay is due solely to the mishandling on the part of the procuring entity.
3. If a procuring entity provides a supplier with an opportunity to correct unintentional errors of form, the procuring entity shall provide the same opportunity to all participating suppliers.
Awarding of Contracts
4. To be considered for an award, a tender shall be submitted in writing and shall, at the time of opening, comply with the essential requirement set out in the notice and tender documentation and be submitted by a supplier who satisfies the conditions for participation.
5. Unless a procuring entity determines that it is not in the public interest to award a contract, it shall award the contract to the supplier that the procuring entity has determined to be fully capable of fulfilling the terms of the contract and that, based solely on the evaluation criteria specified in the notice and tender documentation, submits:
(a) the most advantageous tender; or
(b) if price is the sole criterion, the lowest price.
6. Consistent with the terms of this Chapter, a procuring entity may require a supplier to comply with general terms and conditions pursuant to the terms of the contract.
7. If a procuring entity received a tender with a price that is abnormally lower than the prices in other tenders submitted, it may verify with the supplier that it satisfies the conditions for participation and is capable of fulfilling the terms of the contract.
Article 11.16. Post-Award Information
Information Provided to Suppliers
1. A procuring entity shall inform participating suppliers that have submitted a tender of the entity’s contract award decision and shall do so in writing.
2. To the extent practicable and consistent with its laws and regulations, subject to Article 11.17 (Disclosure of Information), a procuring entity shall, on request, provide an unsuccessful supplier with an explanation of the reasons why the procuring entity did not select the unsuccessful supplier’s tender or an explanation of the relative advantages of the successful supplier’s tender.
Maintenance of Records
3. A procuring entity shall maintain the documentation, records and reports relating to tendering procedures and contract awards for covered procurement, including the records and reports provided for in Article 11.10 (Limited Tendering), for at least three years after the award of a contract.
Article 11.17. Disclosure of Information
Provision of Information to a Party
1. In the case that the supplier of a Party submitted a tender to a procuring entity of the other Party, on request of the former Party, the latter Party shall provide promptly information sufficient to demonstrate whether a procurement was conducted fairly, impartially and in accordance with this Chapter, including, if applicable, information on the characteristics and relative advantages of the successful tender, without disclosing confidential information. The Party that receives the information shall not disclose it to any suppliers, except after consulting with, and obtaining the agreement of, the Party that provided the information.
Non-Disclosure of Information
2. Notwithstanding any other provisions of this Chapter, a Party, including its procuring entities, shall not, except to the extent required by law or with the written authorisation of the supplier that provided the information, disclose information that would prejudice legitimate commercial interests of a particular supplier or that might prejudice fair competition between suppliers.
3. Nothing in this Chapter shall be construed to require a Party, including its procuring entities, authorities, and review bodies, to disclose confidential information if that disclosure:
(a) would impede law enforcement;
(b) might prejudice fair competition between suppliers;
(c) would prejudice the legitimate commercial interests of particular persons, including the protection of intellectual property; or
(d) would otherwise be contrary to the public interest.
Article 11.18. Conduct of Procurement
Each Party shall ensure that criminal or administrative measures exist to address corruption in its government procurement. These measures may include procedures to render ineligible for participation in the Party’s procurements, either indefinitely or for a stated period of time, suppliers that the Party has determined to have engaged in fraudulent or other illegal actions in relation to government procurement in the Party’s territory. Each Party shall also ensure that it has in place policies and procedures to eliminate to the extent possible or manage any potential conflict of interest on the part of those engaged in or having influence over a procurement.
Article 11.19. Facilitation of Participation by Small and Medium Enterprises
The Parties recognise the important contribution that Small and Medium Enterprises (SMEs) can make to economic growth and employment and the importance of facilitating the participation of SMEs in government procurement.
2. If a Party maintains a measure that provides preferential treatment for SMEs, the Party shall ensure that the measure, including the criteria for eligibility, is transparent.
3. To facilitate participation by SMEs in covered procurement, each Party shall, to the extent possible and if appropriate:
(a) provide comprehensive procurement-related information that includes a definition of SMEs in a single electronic portal;
(b) endeavour to make all tender documentation available free of charge;
(c) conduct procurement by electronic means or through other new information and communication technologies; and
(d) consider the size, design, and structure of the procurement, including the use of subcontracting by SMEs.
Article 11.20. Financial Obligations
1. This Chapter does not entail any financial obligations to the Parties.
2. Each Party is responsible for any financial expenses to fulfil its role in this Chapter.
Article 11.21. Language
Each Party shall, where possible, endeavour to make the information referred to in Article 11.6 (Publication of Procurement Information) available in the English language in its publication of materials or information pursuant to that Article.
Article 11.22. Review
Notwithstanding Article 19.7 (General Review), the Parties may review this Chapter within three years of the entry into force of this Agreement, with a view to making improvements of this Chapter so as to further facilitate government procurement, as agreed by the Parties.
Article 11.23. Contact Points
1. Exchange of information and cooperation under this Chapter shall be facilitated through the following contact points: (a) for the UAE, Ministry of Economy; and (b) for Indonesia, the National Public Procurement Agency (NPPA).
2. Each Party shall notify the other Party of any changes to its contact point.
Article 11.24. Cooperation
The Parties shall endeavour to cooperate on matters relating to government procurement, with a view to achieving a better understanding of each Party’s respective government procurement systems and markets and improve the capacity of procurement stakeholders. Such cooperation may include:
(a) exchanging information, to the extent possible, on the Parties’ laws, regulations, and procedures, and any modifications thereof;
(b) encouraging inclusive and sustainable procurement to help ensure that the benefits of the Chapter are widely shared;
(c) sharing experience on the use of electronic means in government procurement systems; and
(d) promoting linkages and business-to-business relations to increase the understanding and awareness of the Chapter among the potential suppliers or businesses, especially SMEs.
Article 11.25. Committee on Government Procurement
1. The Parties hereby establish a Committee on Government Procurement under the Joint Committee, which shall comprise representatives of the Parties.
2. The functions of the Committee shall include:
(a) reviewing and monitoring the implementation and operation of this Chapter;
(b) discussing ways to facilitate cooperation between relevant entities of the Parties in the field of government procurement;
(c) reporting the findings of the Committee to the Joint Committee; and
(d) carrying out other functions as may be delegated by the Joint Committee in accordance with Article 18.1 (Joint Committee).
Chapter 12. INTELLECTUAL PROPERTY
Section A. GENERAL PROVISIONS
Article 12.1. Definitions
For the purposes of this Chapter:
(a) intellectual property means all categories of intellectual property that are the subject of Sections 1 through 7 of Part II of the TRIPS Agreement;
(b) a national means, in respect of the relevant right, a person of a Party that would meet the criteria for eligibility for protection provided for in the TRIPS Agreement.
(c) geographical indication means an indication, which identifies goods as originating in the territory of a Party, or a region or locality in that territory, where a given quality, reputation or other characteristic of such goods is essentially attributable to their geographical origin.
Article 12.2. Objective
The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.'
Article 12.3. Principles
1. Each Party may, in formulating or amending its laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to its socio-economic and technological development, provided that such measures are consistent with the provisions of this Chapter.
2. Appropriate measures, provided that they are consistent with the provisions of this Chapter, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.
3. Further to paragraph 2, the Parties recognise the need to foster competition.
Article 12.4. Understandings In Respect of this Chapter
Having regard to the underlying public policy objectives of national systems, the Parties recognise the need to:
(a) promote innovation and creativity; and
(b) facilitate the diffusion of information, knowledge, technology, culture, and the arts
through their respective intellectual property systems, while respecting the principles of transparency and due process, and taking into account the interests of relevant stakeholders, including right holders, service providers, users, and the public.
Article 12.5. Nature and Scope of Obligations
Each Party shall give effect to the provisions of this Chapter. Each Party may, but shall not be obliged to, provide more extensive protection for, or enforcement of, intellectual property rights under its law than is required by this Chapter, provided that such protection or enforcement does not contravene the provisions of this Chapter. Each Party shall be free to determine the appropriate method of implementing the provisions of this Chapter within its own legal system and practice.
Article 12.6. Understandings Regarding Certain Public Health Measures
Each Party affirms its rights and obligations under the TRIPS Agreement, including its commitment to the Declaration on the TRIPS Agreement and Public Health adopted in Doha on 20 November 2001.